Arkansas Supreme Court refusal to award attorney’s fees in LGBT rights case shows disregard for federal law, prompting SCOTUS cert petition

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Marisa and Terrah Pavan were two of the four plaintiffs in the birth certificate case where they prevailed at the US Supreme Court. | FACEBOOK.COM

By Professor Arthur S. Leonard. This article appeared in LGBT Bar NY’s LGBT Law Notes. Subscribe here

It is truly not over until it is over.

In June 2017, the U.S. Supreme Court ruled in Pavan v. Smith, that Arkansas violated the constitution by refusing to treat married same-sex couples the same as different-sex couples when it came to placing parental names on birth certificates of children born to married women. Indeed, this result was so clear to the majority of the Supreme Court that they did not order merits briefing and hold oral arguments, granting judgment summarily based on the cert papers and reversing the Arkansas Supreme Court.

Now plaintiffs have filed a new petition for certiorari, protesting the Arkansas court’s refusal to award attorney’s fees to the prevailing party in the case! Indeed, although an award of appellate attorney’s fees to a party who prevails on a constitutional rights claim in the Supreme Court usually follows as a matter of course under the Civil Rights Attorney’s Fees Award Act of 1976. The Arkansas Supreme Court denied the fee application without explanation.

In the petition, the plaintiffs state:

“The Arkansas Supreme Court’s denial of fees without explanation shows a complete disregard for the requirements of Section 1988 and this Court’s cases construing that statute. The Arkansas court’s refusal to follow and apply this binding federal law reflects its continuing intransigence in the face of this Court’s ruling in Obergefell, which has already merited one summary reversal from this Court.”

The petition is Pavan v. Smith, №17–1393 (filed April 4, 2018, response due May 7, 2018).

On May 7, Deputy Solicitor General Nicholas J. Bronni of Arkansas filed a Waiver document with the Supreme Court, stating that he did not intend to file a response to the Petition unless one was requested by the Supreme Court.

Executive Director, LeGaL @lgbtbarny. Attorney promoting justice in & through the legal profession for the #LGBT community. 40 Best LGBT Lawyers Under 40.

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